Oral Health Topics
The purpose of this manual is to assist dental societies and associations in establishing some mechanism for support of dentists with infectious diseases. The chapters may be utilized individually for training purposes or, as a whole, as a comprehensive resource. When all levels of state programs are using this as a primary framework, consistency will be established throughout the country.
The emergence of new infectious diseases and the re-emergence of diseases, once thought to be under control, now challenge the practices of all health care professionals. Strains of bacteria which were once susceptible to antibiotics have become resistant. Tuberculosis has returned, often in a multi-drug resistant form. Viral diseases which were unknown twenty years ago must now be recognized and responded to in an aggressive and timely manner.
Organized dentistry continues to meet these challenges. Dental school curricula continuously evolve, as does the scope and content of continuing education for those already in practice. Both of these educational efforts reflect sound scientific information regarding infectious diseases. Dentistry is at the forefront of infection control procedures, which confirms the fact that patients' health and well being are primary concerns. The procedures and practices that have now become standard in dentistry have served as models for other health care providers. Dentistry has played, and continues to play, a major role in establishing state-of-the-art infection control protocols for the small office environment.
The leadership role that dentistry has played in the prevention of infectious diseases continues with this manual. A resource document for health care providers with infectious diseases has, up to now, not been available for any of the health professions. General issues and needs arise whenever any person becomes ill, but for infected health care providers unique challenges are presented.
Preventing disease before it has a chance to occur has been the traditional definition of primary prevention in public health. The chapters that follow will discuss the implications of primary prevention as it relates to dentists with infectious diseases. Universal precautions and strict infection control guidelines also fall under the category of primary prevention. Both patients and staff are being protected from infection.
Secondary prevention of disease is defined as its early detection and prompt treatment. Diagnosis of infection, especially of those infections with long asymptomatic periods, is crucial for both the health of the individual dentist and the agencies responsible for assessing the provider's ability to provide care. Prompt treatment through the use of medications, alterations in lifestyle, stress reduction, emotional and psychological support, have all been shown to increase the quality of life of those with chronic illnesses. The need for regular medical care and monitoring cannot be overemphasized.
The tertiary component of prevention is rehabilitation and limitation of disability. It is best described as a period of transition. Alternatives to clinical practice along with retraining may be important for dentists who can no longer perform direct patient care. Restrictions on practice may also be obligatory by state statute. The financial consequences for those with inadequate disability or health insurance can be devastating. This manual will address these challenging issues and provide pertinent resources for finding assistance and information.
Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) infection, hepatitis (HBV), and tuberculosis (TB), along with its latest permutation, multi-drug resistant tuberculosis (MDRTB), are the triad of disease entities this monograph will address. Using this triad as a paradigm, modifications, alternatives and resources may also be identified for other infections which impact the dentist. All infectious diseases impacting the dentist raise significant concerns; however, at this writing, HIV disease has well established resources, treatments and supportive services. For this reason, the manual will draw heavily upon HIV/AIDS as a model for adaptation with other infectious diseases.
A certain sense of unity in dealing with infected dentists emerges when one studies the literature on HIV/AIDS, HBV and TB. At the same time, HIV/AIDS is unique in the response it has elicited from both the public and the profession. Since 1982, more than 440,000 Americans have been diagnosed with AIDS, yet outside of the Florida dentist's cluster, no other cases of transmission from health care provider to patient have been documented. To date, of the 22,101 patients treated by 51 HIV positive HCWs (25 of whom were dentists and four of whom were dental students), no other cases of transmission from HCWs have been documented. Despite the unique singularity of the Florida case, the concerns regarding transmission have been enormously publicized and scrutinized, making HIV/AIDS unique for dentists who are infected. Some states, for example, have passed laws mandating that infected providers limit their practices until the Board enters an order delineating the scope of practice. Others have allowed infected providers to continue practicing provided they adhere to universal precautions and are followed regularly by a personal physician. Some states require that dentists who are HIV infected inform their patients of their HIV status.
Regardless of the existing recommendations and laws, infected dentists, physicians and/or their estates have been involved in litigation involving care provision while infected. The public feels it has a right to know the HIV status of their dentists; to facilitate proper treatment, dentists want to know the health status of their patients. Certainly the circumstances and issues surrounding disclosure by the infected dentist can be volatile, at best.
What does having an infectious disease truly mean to practicing dentists? Whom do they inform and when? What resources are available to assist with the decision making process? How do they determine whether and how to find legal counsel? How do they go about informing the expert review panel, if necessary, in their state? How to maintain confidentiality when filing for benefits? The questions are endless but answers are available.
Offering problem solving strategies is the purpose of this manual: to help the infected dentist begin the process of accessing the information needed to make decisions. A theme that will recur throughout the manual is that of informed decision making. No two providers will ever be confronted with the same set of issues. Their age, sex, geographic location, disease, stage in the disease process, support networks, economic position and point in career path will influence the decision model they choose. What becomes crucial is the need for a resource base to acquire the knowledge necessary for an informed decision.
Infected dentists can be well served by being aware of the facts and the arguments and then assessing what is appropriate action for their unique situation. Because of the complexity of the issues involved, a specific bibliography for further study is available at the end of each section of this manual. Some sections also list resources that may be of particular interest to dentists and their caregivers. The ADA does not necessarily endorse the non-ADA resources that appear on those lists, and makes no representations or warranties about the services those resources may provide. However, it is hoped that some of the contact agencies will be of assistance to their families, caregivers, colleagues or anyone else wishing to learn more about the general concerns of people living with chronic infectious diseases, particularly HIV/AIDS.
These materials are a start - they are neither comprehensive nor definitive. Throughout the text, one disease, HIV/AIDS, has been used as a primary focus and, whenever possible, other infectious diseases are addressed. What is provided should be seen as a groundwork for further study toward informed decision making. Dentists must rely on their personal physicians and attorneys for medical and legal advice.
The American Dental Association will continue to provide leadership and resources to states developing programs for dentists with infectious disease and provide updated information when it becomes available.
Centers for Disease Control and Prevention HIV/AIDS Surveillance Report 6(2); 1994.
Robert, L.M., et al. Investigation of patients of health care workers infected with HIV. Centers for Disease Control and Prevention Data Base. Annals of Internal Medicine 1995; 122:653.
Infected practitioners have various legal rights and responsibilities, as do persons with whom they associate. There are civil rights laws prohibiting discrimination against persons with disabilities, which afford numerous protections to infected providers and those who associate with them. These and other state laws (e.g., pertaining to confidentiality and practice restrictions) may bear upon an infected provider's practice.
The law regarding infected practitioners should be driven by science. For example, for the same reason that HIV-infected patients have certain legal rights to treatment, HIV-infected providers have certain rights to practice: in each case, the common thread driving the law is the generally accepted scientific proposition that universal precautions work. Because much of the law concerning infected providers arises in the HIV/AIDS context, this chapter emphasizes that model.
The legal issues facing HIV-infected health care workers in their practices are arguably important for all health care providers, whether they themselves are HIV-infected or not. For example, unwarranted restrictions imposed on HIV-infected providers have the potential to undermine the critical patient education message that treatment is safe when universal precautions are followed.
- Anti-Discrimination Laws
- Public Accommodations
- Practice Issues
- State Mandated Restrictions and Disclosure
- Mandatory Reporting
- Mandatory Testing of Providers
- Practice Sales
- " Fear of AIDS" Cases
- Business Restrictions and Disclosure
- Managed Care and Insurance
- Friends, Family and Advisors
- Ethical Considerations
- Anti-Discrimination Laws
A number of civil rights laws prohibit unwarranted discrimination against persons with infectious diseases. At the federal level, these are the Americans with Disabilities Act (AwDA) and the Rehabilitation Act (Rehab Act); similar state and local laws may also apply.
Under the AwDA, a person is considered to have a disability if she/he has a physical or mental impairment that substantially limits a major life activity (such as breathing, walking, working, etc.), has a record of such an impairment, or is perceived as having such an impairment. Accordingly, most courts are likely to treat HIV/AIDS, Hepatitis and TB as both infectious diseases and disabilities for legal purposes.
Protections for persons with disabilities under the civil rights laws are far reaching, extending to employment, public accommodations (commercially available services such as medical care, entertainment, etc.) and services provided by public entities (including units of state and local government, such as state hospitals). The Rehab Act affords protection for persons with handicaps employed in businesses of all sizes, when the employer receives Medicare, Medicaid or other federal funding. These federal laws set the minimum standards. State and local laws may provide persons with disabilities even more rights and/or legal remedies.
In addition to expanding protections for people with disabilities, the AwDA provides powerful new protections against discrimination for individuals who have associations or relationships with people with disabilities; e.g., their friends, family and probably even their professional advisors.
The anti-discrimination laws provide various remedies for aggrieved persons. Infected providers who believe they have been discriminated against should consult with their legal counsel regarding their rights. The remedies available to individuals who suffer discrimination vary according to the statute under which a claim is filed. A successful plaintiff in an discrimination suit may be able to secure fines, damages, injunctive relief (e.g., reinstatement or orders preventing further discrimination) and attorneys fees.
The AwDA's prohibition of discrimination in places of public accommodation (Title 111) affords protections to all persons with disabilities, including infected providers, in numerous important avenues of their lives; e.g., health care, food service, entertainment and other service industries are all covered by this portion of the law. Supplementing the federal laws' duty of equal treatment, most states and units of local government have similar public accommodations provisions that apply to individuals with disabilities, which may afford even greater protections.
The AwDA's general rule prohibiting discrimination against persons with disabilities by places of public accommodation provides:
"[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."
The law refers to behavior that will constitute discrimination such as a denial of participation, provision of only an unequal benefit, and provision of a separate benefit. In addition, the AwDA grants persons with disabilities the right to enjoy public accommodations in an integrated (as opposed to segregated) setting, and the right to participate in integrated programs. The AwDA prohibits the use of administrative methods that have the effect of discriminating against the persons with disabilities (e.g., unwarranted eligibility criteria that screen out people with disabilities), and the modification of policies and practices or procedures to limit access to the public service or accommodation in question. Finally, the AwDA's prohibition against "associational discrimination" protects even able-bodied individuals who associate with persons with disabilities.
The AwDA and the Rehab Act provide a defense if the disabled individual cannot be accommodated without creating a "direct threat" to the health and safety of others. "Direct threat" is defined as a "significant risk to the health and safety of others that cannot be eliminated by a modification of policies . . . or procedures . . ." While the construction of the direct threat defense is unclear, courts have held that it is necessary to make an individualized assessment of the nature of the risk, the probability of injury, and the possible reasonable modification of policies. It should be noted that the threat of transmission varies depending on the infectious disease in question. For example, a dentist seeking certain services may be viewed as posing a direct threat if she/he has a highly communicable disease such as active TB, as opposed to HIV, which can only be transmitted via blood or certain other body fluids. Further, if the threat can be satisfactorily modified, perhaps via the use of special precautions, even a dentist with active TB might be entitled to certain services, such as emergency medical care.
The AwDA's employment law provisions (Title 1) prohibit all employers with 15 or more employees from discriminating in employment. Although infected providers who are employed in small dental practices may not be covered by this portion of the AwDA, they may nevertheless have federal employment law rights under the Rehab Act, which is a similar law that applies to all employers who receive certain federal funds. In addition, more stringent state and local laws may also apply.
The AwDA prohibits a covered employer from discriminating against a qualified person with a disability in all aspects of the employment relationship. This prohibition extends to job application procedures, hiring and firing, job training or advancement, compensation and benefits, and other terms, conditions and privileges of employment. To qualify for Title I protection, the person must be "a qualified individual with a disability" able to perform the "essential functions of the job' with or without a "reasonable accommodation." Discrimination under the AwDA includes the failure by an employer to make reasonable accommodations to the known limitations of a person with a disability. The term "reasonable accommodation" is defined to include "modifications or adjustments to a job application process, work environment or the manner in which a job is performed that enable a qualified individual with a disability to be considered for or able to perform the job." Examples include removal of structural barriers, modified work schedules (such as flex time), provision of auxiliary aids, job restructuring or reassignment. An employer is not required to make an accommodation that would cause an "undue hardship" on its business, allowing a financial defense to employers.
The AwDA does not prevent employers from using "qualification standards" that relate to the essential functions of the job in question and are consistent with business necessity. However, the use of qualification standards as a pretext to screen out individuals with disabilities is not permissible.
Employers covered by the AwDA can terminate or refuse to hire a person based on the presence of a "direct threat" to the health and safety of others. As in the public accommodations context, the direct threat standard sets a very high threshold, requires an individualized determination and (according to regulations interpreting the AwDA) must be based on current public health expertise. For example, it would be inappropriate for an employer to impose practice restrictions on an HIV-infected dentist without establishing that universal precautions would not eliminate or satisfactorily minimize any threat of transmission.
Currently, there is no scientific evidence to indicate that HIV- infected health care providers pose an identifiable risk of HIV transmission to their patients . . . The ADA strongly affirms that universal precautions are an effective and adequate means of preventing the transmission of HIV from dental health care workers to patient and patient to dental health care worker.
(ADA Policy on HIV-infected Dentists [1991:5921.)
A driving legal theme relative to practice issues, and certainly one of critical concern to many infected providers, is that of confidentiality. Just as an infected patient's health care information is protected by both state and federal laws, an infected health care worker's status is generally protected from disclosure by statutes mandating confidentiality. Similarly, the United States and state constitutions recognize an individual's right to privacy with respect to health care information. However, the right to privacy is not absolute, and courts are being confronted with the task of balancing the privacy right of an individual health care worker with the competing need for the public disclosure of relevant information to patients. A particularly sensitive situation can arise when a provider is asked by a patient, before treatment, about the provider's HIV status. Whether a provider has a duty to disclose at that point is likely to turn, in large part, on whether the information must be disclosed to secure informed consent under state law.
The necessary balance between provider and patient rights plays out in numerous arenas. To begin with, there may be various state mandated practice restrictions and/or reporting requirements. In addition, the balance must often be struck in the context of various business relationships, including employment, medical staff, insurance, managed care and practice sales.
The remainder of this chapter addresses the above issues. It closes with an indication of how an infected dentist's relationships with his/her friends, family, and advisors may be shaped by similar confidentiality issues and other related legal concerns.
State Mandated Restrictions and Disclosure
CDC and State Guidelines
Despite the protections provided by federal anti-discrimination laws, some restrictions on HIV-infected health care workers have been recognized. The Centers for Disease Control and Prevention (CDC) has established guidelines for practice restrictions on health care workers with HIV. In 1991, Congress enacted a law requiring states, as a condition of federal funding, to adopt the CDC guidelines or equivalent regulations restricting the practice of HIV-infected health care workers. Pursuant to that law, forty-six states have adopted either the guidelines or their equivalents. The four remaining states, Indiana, Kentucky, Nebraska and New Jersey, have received extensions of time to comply with the law (as of this writing).
The CDC guidelines base their restrictions on the definition of "invasive procedures" which are generally defined to include procedures that involve surgical entry into tissues, cavities, or organs or repair of major traumatic injuries. The guidelines suggest that health care professionals who perform such invasive procedures should know their HIV status and, if positive, they should not perform exposure-prone procedures unless they have sought counsel from an expert review panel.
The guidelines do not mandate that HIV-infected health care workers notify patients or stop working. Rather, the CDC guidelines and state equivalents, along with the policies of most national health care societies, support case by case evaluation of what practice restrictions, if any, should be imposed on the provider in question. This would typically be done by an expert review panel in the state where the provider practices. In some states, submission to such a panel is mandatory. In others, where it is permissive, voluntary submission to such a panel can be good risk management and may help protect against frivolous litigation. It should be noted that the state requirements may establish a standard of care, which can make compliance even more important; e.g., many states "strongly encourage" that all at-risk health care workers know their status, whereas in other states this is a mandate.
Assuming that state expert review panels are covered by the Americans with Disabilities Act prohibiting discrimination by units of state and local government (Title 11), their activities must be conducted on a non-discriminatory basis. This suggests that any practice restrictions recommended by such review panels must be rooted in science, rather than based on unsupported fears. While there is no case law addressing the issue, it would seem reasonable for a panel to consider, on a case by case basis:
- Whether the infected provider has sound technique,
- Whether she/he uses universal precautions,
- Whether such precautions will eliminate any direct threat of transmission for the procedures involved, and
- Whether the provider's AIDS has progressed (e.g., because of mental lapses) to the point of interfering with good practice.
- (This last factor should not result in disqualification unless a non-infected provider with the same functional defects, e.g., due to Alzheimers or other conditions, would also be disqualified.)
If after considering such factors the panel determines that there is no meaningful risk of transmission, the panel would be hard pressed to find a legal basis to restrict the provider's practice.
It is believed that few state boards require HIV-infected providers to report their status, but providers should know what is required. As state entities, licensing boards need to comply with the AwDA's prohibition of discrimination by units of state and local government (Title 11). Accordingly, disclosure to state boards can arguably be required only if supported by sound science; e.g., evidence that mandatory disclosure would reduce a significant risk of transmission.
Mandatory Testing of Providers
The legal status of state mandated HIV testing requirements for health care providers is as yet undecided under the AwDA and Rehab Act. Public health experts and most major health care societies oppose mandatory testing for a variety of reasons, including cost and the fact that test results do not provide current information. The analysis of the legality of mandatory testing may ultimately be patterned after the balancing test that has been applied in confidentiality decisions, by weighing the privacy right of the dentist against the interest of the patient to know the HIV-status of his or her health care provider.
Legal and ethical issues may arise in connection with the sale by an infected provider of his or her practice. The legal concerns relate principally to whether there is a duty to disclose one's status to potential purchasers. The answer to this question will likely turn on state and/or local law. For example, is there a state statute mandating disclosure? Is there a common law or ethical duty to disclose material facts that bear upon the value of the practice? An obviously inexact analogy may be made to whether a homeowner has legal or ethical duties to disclose, before sale, that his/her house has a leaky roof or floods. Is there a local ordinance that requires disclosure, or at least disclosure if asked? In contrast, does a state statute expressly provide that a seller's infections disease status need not be disclosed? Consider the hypothetical situation of an infected dentist who has maintained the value of his/her practice by keeping his/her infected status confidential, believing that the value of the practice would drop significantly once the patients learn of the dentist's status. In balancing the buyer's and seller's interests, a court considering fraud or negligence claims would likely address a variety of public policy considerations.
"Fear of AIDS" Cases
In addition to finding that a health care provider's right to privacy is superseded by the interest of patients in knowing the provider's health care status, courts in a few states, but not others, have recognized a right of action where patients are not informed that their health care provider is HIV positive. These cases, often referred to as "fear of AIDS" cases, have opened some HIV-infected health care providers up to liability for treating patients, even absent any proof of transmission. The permissibility of these so-called "fear of AIDS" cases varies according to state law.
The "fear of AIDS" cases reflect an especially broad reading of the law of negligent infliction of emotional distress because they allow patients to pursue a cause of action without showing actual exposure to HIV. In the few jurisdictions that have allowed "fear of AIDS" cases, HIV-infected providers typically need to inform patients of their HIV-status in order to secure informed consent; otherwise, they may face the prospect of non-infected patients, upon learning that their provider was infected, pursuing claims on the basis that they fear they will contract HIV.
In many states, claims for emotional distress based on "fear of AIDS" have not been allowed or have been severely restricted. For example, one state supreme court has held that in order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove actual exposure to HIV. Another state supreme court has ruled that emotional distress is not an injury unless the plaintiff can plead and prove that "the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future." Similar decisions have applied this standard to fear of AIDS cases. Indeed, the overall trend seems to be that more courts are disallowing or restricting "fear of AIDS" claims than allowing them.
When a health care provider consistently uses universal precautions, a patient who contracts AIDS may have a difficult time establishing that the provider should be held liable for transmission of HIV. Nevertheless, because some states allow "fear of AIDS" claims and others do not, infected providers should keep abreast of their state law in this regard.
Business Restrictions and Disclosure
Employer Restrictions on Infected Health Care Workers
The AwDA and Rehab Act clearly prohibit employers from restricting the practice of infected health care workers who pose no risk of transmission. However, it is not entirely clear whether the remote risk posed by certain health care workers may be found by courts to present a "direct threat" giving rise to a statutory exception. "Direct threat" is defined as a "significant risk to the health and safety of others that cannot be eliminated by a modification of policies . . . or procedures . . ." Because the federal statutes clearly require the existence of a significant risk, a minimal risk is unlikely to allow for discrimination.
There is very limited case law interpreting the "direct threat" defense. While the construction of the defense is not yet clear, courts have held that it is necessary to make an individualized assessment of the nature of the risk, the probability of the injury, and the possible reasonable modification of policies. Outside the health care context, courts applying such analysis have consistently found that HIV does not constitute a direct threat.
Some courts have found that certain HIV-infected health care providers who undertake invasive procedures pose a direct threat of transmission that cannot be reduced to an acceptable level through the use of universal precautions. Accordingly, those courts have held that a provider's practice could be restricted and/or that the provider must inform patients of his/her status - in other words, that an individual health care worker's right to privacy is superseded by the patient's interest in knowing the HIV status of his/her health care providers. In contrast, another court found that the risk of transmission during a routine physical exam by a infected physician using universal precautions was not significant.
It should be noted that the cases finding against infected providers are arguably not in line with the general rule that informed consent does not require the disclosure of remote or statistically insignificant risks. Further, to date no court has reached a similar result concerning "direct threat" when assessing the duty to treat HIV-infected patients, in that context, scientific testimony about the efficacy of universal precautions has driven the law. The case law on this issue can be expected to evolve, and should be driven by science. Expert testimony, along with the recognition of the efficacy of universal precautions, is likely to be very influential in the determination of what constitutes a direct threat.
Managed Care and Insurance
Do the civil rights laws apply if managed care organizations and malpractice insurance providers, through contractual provisions, require that participants of their programs not carry an infectious disease and/or seek to compel testing? While this issue has yet to be resolved by case law, a strong argument could be made that the question is not whether the laws apply, but which part of the laws apply. For example, dentist employees may be protected by the AwDA and/or the Rehab Act; likewise, even non-employee dentists may have protections under those laws, given a trend for courts to treat such individuals as employees under the civil rights laws.
Providers confronted by managed care companies with such contract provisions, whether they have an infectious disease such as HIV or not, could argue that they are entitled to protections as employees of those entities under the anti-discrimination laws; in contrast, insurance companies would more likely be subject to claims characterizing them as public accommodations.
Assuming that managed care and insurance companies are covered by at least one applicable provision of the anti-discrimination laws, the question then arises as to what types of contract provisions would violate the law. Disclosure of a provider's HIV status could probably be compelled only if there is a need for the information and a possible non-discriminatory usage. For example, blanket contract provisions that require providers to report communicable diseases and cease practicing until a cure is found would be of questionable legality.
Friends, Family and Advisors
As noted above, the AwDA provides powerful new protections against discrimination for individuals who have associations or relationships with people with disabilities; e.g., their friends, family, professional advisors (although there are not yet any cases on this point), and others. As a general rule, such individuals are entitled to be free from discrimination by virtue of their associations with persons with disabilities. It should be noted, however, that only the person with a disability, not the persons with whom she/he associates, is entitled to a "reasonable accommodation."
There are excellent and important reasons to provide assistance to persons with disabilities. However, individuals who provide such assistance may wish to keep in mind that doing so is not without legal risk. For example, those giving professional advice can be sued for malpractice, e.g., for giving bad advice, making bad referrals, etc. Those giving advice beyond their area of expertise may have risk, such as being charged with practicing without a license. A sound approach is to provide good advice, within one's area of expertise, and to secure professional liability insurance where appropriate.
Infected dentists concerned about confidentiality may wish to keep in mind that state law will typically define what communications be protected as legally confidential. This will often turn on the person(s) with whom the information is shared. For example, sharing one's HIV status with one's doctor or lawyer is generally protected pursuant to state confidentiality statutes. However, offering the same information to one's friends may not be cloaked with the same legal protections. Infected dentists will obviously want to make informed choices about sharing information about their status, and these legal concerns are only one aspect of that decision.
The dentist-patient relationship is characterized by fiduciary duties that distinguish the profession from other occupations. These duties are incorporated in the ADA Principles of Ethics and Code of Professional Conduct (Code). The overriding ethical duty of dentists is service to the public. Legal and ethical duties often track each other, but they are not the same. Typically, ethical duties exceed legal requirements. The analysis by the infected practitioner cannot stop with his or her legal rights and responsibilities, but must include consideration of the question, "What should I do, even if the law does not require it?"
The ADA Council on Ethics, Bylaws and Judicial Affairs has issued the following interpretation of the Code dealing with infected dentists:
"A dentist who becomes ill from any disease or impaired in anyway shall, with consultation and advice from a qualified physician or other authority, limit the activities of practice to those areas that do not endanger the patients or members of the dental staff." (Advisory Opinion No. 1 to Code, Section 1-C, Community Service)
There are no decisions applying this advisory opinion to a specific set of facts, so only general comments about its implications are possible. Certainly, there is nothing in the advisory opinion that automatically requires an infected dentist to limit his or her practice without regard to risk. On the contrary, the advisory opinion specifically ties the dentist's ethical duty to limit his or her practice to the concept of patient and staff endangerment and requires the dentist to seek advice from a qualified physician or other authority. This is consistent with the procedure discussed previously for expert review panels to make individualized risk assessments and decide on a case by case basis what practice restrictions, if any, should apply to a particular practitioner. A crucial element in any risk assessment will always be the dentist's scrupulous adherence to universal precautions.
A related issue is the ethical duty of infected practitioners to disclose their disease status to their patients. The Code respects the principal of patient autonomy, that is, the right of competent individuals to make decisions about what treatments will be rendered to their bodies. The Code states,
"The dentist should inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions." (Code, Section 1-M, Patient Involvement)
No one disputes that patients need information about the risk of the proposed treatment in order to become involved in treatment decisions. The problem is deciding what risks the practitioner should disclose. Ethicists agree that dentists should disclose all risks that are likely to occur and may cause death or serious harm. They differ over whether there is an ethical obligation to disclose risks that are extremely remote but involve potentially serious consequences if the information is something the patient would want to know. Some ethicists would argue that the dentist's HIV status is in this category.
There are no easy answers. However, it is difficult to reconcile an across-the-board duty to disclose with the position that HIV infection alone does not automatically disqualify one from practice. Unfortunately, disclosure of HIV status by an infected dentist in the climate of fear surrounding AIDS is tantamount to withdrawing from practice. Many, if not most, patients would probably seek dental services elsewhere, if they knew their dentist was HIV-infected, even though the risk of disease transmission to the patient was virtually nonexistent.
Patients are not governed by the same rules on confidentiality as practitioners. Disclosure to one patient is likely to result in the information reaching other patients and the larger community. The names of HIV-infected practitioners have appeared in the press. The potentially devastating effects of such publicity on family, friends and the individual practitioner should also be considered in analyzing the dentist's ethical duty.
It is beyond the scope of this chapter to provide a definitive analysis of the various laws and ethical considerations that may effect a provider with an infectious disease. The law is fluid, and blanket guidance is neither available nor appropriate. The profession's understanding of the ethical obligations of infected practitioners is also evolving. An infected dentist can be well served by becoming familiar with the general legal and ethical issues and obtaining expert legal counsel. The need for appropriate counsel can be one of the most critical issues facing the infected dentist, and it can be important to retain counsel before important decisions, such as disclosure to state review boards, insurance carriers, potential purchasers of a practice, employers, etc., need to be made. An attorney who is familiar with disability law and dental practice issues, who follows the rapidly evolving case law, and who has had experience with other infected providers, can be an invaluable resource for the infected dentist.
American Dental Association - Legal Affairs
211 E. Chicago Avenue
Member toll-free number, Ext. 2779
Information specific for dentists with infectious diseases.
Also, ADA Principles of Ethics and Code of Professional Conduct. Chicago: ADA; 1994.
*AIDS Policy and Law
1350 Connecticut Avenue, NW
Washington, DC 20036
Biweekly report on AIDS law and policy developments.
*American Association of Physicians for Human Rights
273 Church Street
San Francisco, CA 94114
Referrals to attorneys familiar with issues specific to HCWs with infectious diseases.
*American Bar Association
AIDS Coordination Project
1800 M Street, NW
Washington, DC 20036
Directory of legal resources for people with AIDS and HIV. Attorney referral.
*American Civil Liberties Union
132 W. 43rd Street
New York, NY 10036
212.944.9800, Ext. 545
Affiliates in almost every state. Discrimination, confidentiality, public health policy and access to care.
*Intergovernmental Health Policy Project
AIDS Policy Center
George Washington University
2021 K Street, NW, Suite 800
Washington, DC 20006
Gathers, analyzes and disseminates information on state AIDS policy legislation. Maintains collections of summaries of all state laws related to HIV/AIDS since 1983.
*Lambda Legal Defense and Education Fund
New York, NY 10012
Advocacy and referral network for those impacted with HIV/AIDS.
The American Dental Association wishes to express its appreciation to the Lambda Legal Defense and Education Fund, Inc., for its review and comments on this chapter.
Stetson College of Law
Gulfront, FL 33707
Online discussion areas and selection of files relating to legal issues.
*National Health Law Program
2025 M Street, NW
Washington, DC 20036
*The National Lawyers Guild
1793½ McAllister Street
San Francisco, CA 94115
Attorney network and practical assistance for HIV impacted people.
*The ADA does not necessarily endorse the non-ADA resources that appear on this list and makes no representation or warranties about the services they may provide.
The Council on Dental Practice wishes to acknowledge Dr. Lewis Lampiris for his contribution in the development of this manual with the assistance of Dr. Stephen Abel, Dr. Theresa Madden and Ms. Linda Crosby, Manager, Dentist Well Being Programs.
The Council also recognizes the contributions of the following ADA staff in ensuring the scientific and technical accuracy of the document:
Dr. James B. Bramson, Director, Council On Dental Practice
Brian Shearer, Ph.D., Director of Scientific Information and Policy
Mark Rubin, Esq., Associate Legal Counsel
Kathleen Todd, J.D., Associate Legal Counsel
Mr. David Dwyer, Director, Council on Insurance
Ms. Marsha Mountz, Manager, ADA Endowment and Assistance Fund, Inc.
and the participation of Ms. Karen S. Cervenka, Executive Director, American Student Dental Association, in this project. The Council also wishes to thank Ms. Joan Block for her work in entering and formatting this manuscript for publication.
The Council on Dental Practice Mission Statement
The mission of the Council on Dental Practice is to recommend policies and provide resources to empower our members to continue development of the dental practice, and to enhance their personal and professional lives for the betterment of the dental team and the patients they serve.
This publication is informational in nature and is not intended to provide legal, financial, psychological, social service or other professional advice. Infected dentists and those providing support services to them need to consult with their personal professional advisors for such advice. The non-American Dental Association resources identified in this text are intended to be only starting points for information, and neither their products nor services are necessarily endorsed by the Association.